The “Costs” of Accountability in War

by John C. Dehn

I’d like to call attention to comments by Ben Wittes over at Lawfare regarding two recent New York Times editorials. Both editorials essentially deal with issues of accountability in armed conflict. One voiced (understandable) skepticism regarding government claims that the CIA’s drone programs have caused no civilian deaths in the past year or so. The other commented on a Seventh Circuit decision allowing Bivens lawsuits by U.S. citizens (for non-U.S. lawyers, Bivens lawsuits are those seeking damages for alleged constitutional violations) to proceed against former Defense Secretary Rumsfeld and others for alleged mistreatment in Iraq (in this case, torture, arbitrary detention, etc.). Ben offered earlier comments on this and a similar U.S. District court decision.

Ben says that he is conflicted on these cases, but offers the closing thought that “. . . what will come from extending Bivens to these cases will, in the long-run, not prove salutary either. Rather, the litigation . . . of these Bush-era cases will create real costs for war-fighting that are hard to envision prospectively but that will prove no less real for that fact.” This seems to be an assertion that holding government officials accountable, or in these cases merely susceptible to suit and potential accountability for alleged wartime misconduct, imposes “real costs for war-fighting,” and that these costs are necessarily a bad thing. I disagree that this is so.

The fact of the matter is that accountability is always costly. Having spent many years in the U.S. Army as both a lawyer and non-lawyer, I am quite familiar with the costs, in manpower, in time and sometimes in individual or unit morale, of accountability. But there is little doubt in my mind that these very real costs add very real value, to good order and discipline, to attention to detail, and ultimately, to internal and external institutional legitimacy. This admittedly imperfect commitment to accountability is undoubtedly why polls often show the U.S. military to be one of the most trusted institutions in our society.

Regarding Ben’s concerns, this country’s executive branch officials successfully fought our nation’s wars for over a century before the courts (through judicially created immunity doctrines and ever-expanding applications of the political question doctrine) and Congress (through the Federal Tort Claims, Westfall and similar acts) erected substantial obstacles to such suits. For example, in Little v. Berreme a naval commander was held personally liable for capturing a foreign vessel contrary to the act of Congress delimiting permissible hostilities even though his actions arguably complied with a presidential order. In Mitchell v. Harmony, a field commander was held personally liable for destroying the property of an American merchant in spite of his claim that its destruction was necessary to avoid its capture and use by the enemy. General Hovey and the officers who conducted Lambin Milligan’s military commission (found to be unconstitutional by the Supreme Court in Ex parte Milligan) were held personally liable for convening this unlawful tribunal even though it may have been ratified by both the executive branch and Congress. See Milligan v. Hovey, 17 F. Cas. 380 (C.C.D. Ind. 1871). As the court said:

“If an act is prohibited by the constitution, and it is beyond the power of congress to authorize it, then it may be said the wrong done by the act is not subject to complete indemnity by congress, because then the prohibition of the constitution to protect private rights would be without effect.” Id. at 381.

In other words, as the Supreme Court essentially found in Bivens, the individual accountability and personal liability of government officials for constitutional violations is sometimes necessary to preserving the rights of citizens against their government, and this remains true, perhaps especially so, in war. There is no question that a condition of war sometimes alters the relationship of a citizen to his government, especially for those citizens who take up arms against their government. But as I have argued elsewhere regarding targeted killing

“If armed conflict is an exceptional condition that may relax or eliminate specific constitutional protections in certain circumstances, then the courts must, in cases meeting jurisdictional prerequisites, ensure that those exceptional circumstances actually exist and are not being opportunistically asserted by an overzealous executive.”

I am not proposing that we throw open wide the courthouse doors to claims of executive misconduct in war. However, we must not overestimate the costs, or underestimate the benefits, of opening them.

7 Responses

Welcome John and thank you for bringing this topic front and center for this audience.

It does seem extremely odd to me that we are at a point in this country where holding a governmental official accountable for torturing an American raises issues of “ambivalence” and worries for “war-fighting”. Have the years of torture apology and torture of foreigners with impunity so anesthetized us that anything goes on such fundamental points?

I in particular am focused on holding generals and high-level civilians (the “suits” so to speak) accountable for systemic abuses. It appears that the two cases that are going forward against Rumsfeld are about treatment he personally ordered for them. But, what about the Senate Armed Services Committee December 2008 report about the elaborate super-structure for torture that was put in place with the reverse-engineering of SERE, the getting the legal opinions, the PMO as a way to use the coerced evidence, the de facto chains of command blurring between CIA and Military authority? All of that stuff did not just happen but had to be put in place.

Accountability up the chain of command for people who did not order x or y person to be treated a certain way but who put in place a system that assured that 100 persons got treated horrendously is what I find lacking. I do not believe a Charlie Graner or Lindsey Englund are just “bad apples”. For example, I look at the psychologists who were put in the room to evaluate and develop the torture methods used on particular detainees and think “they were there because someone saw their code of ethics was different from the psychotherapists in terms of what they could do” or even pushed the American Psychology Association to bend its standards. What about the orchestrator of all that?

Let’s take the case of Al-Qahtani and all the forces that were put in place to leave him as a vegetable right up the chain of command. Where is the accountability for that vegetable state for any present or former person in our government including those who destroyed the tapes of his waterboarding?

On another level, what about accountability for taking the country to war on false pretenses. Back with Polk he was censured by the House for the “extra-constitutional” Mexican American War. We can conceive of the heads of other countries being held criminally accountable (Milosevic, Khaddafi, etc) but seem incapable of imagining our own leaders being held criminally responsible for taking the country to war on false pretenses. Why? Of course there is the way we are trained to revere the President and respect the office, but what if the man or woman in that position is committing a horrendous act as defined under the law (mens rea and actus reus) using the levers of his Constitutional and Congressional powers? Impeachment is only a political removal process. Given how torn apart we are as a polity, a criminal prosecution of a former President or Rumsfeld for crimes committed could not hurt us that much could it? And imagine the salutary effect on future Presidents or Defense Secretaries. “You can go to jail for playing fast and loose with the national security of the United States – no matter what level of the Executive.” would be the message. But, we shy away from such things. Why?

Best,
Ben

8.16.2011
at 3:15 pm EST Benjamin G. Davis

What I’d like to know is the following: Imagine that U.S. abducts me outside U.S., for instance in Pakistan, imprisons me without trial, for instance in Baghram Afghanistan, tortures me on a remote place outside the U.S.. And eventually kills me. Here are some questions:

(1) Where can I sue U.S. to get a fair trial?
(2) Where can I sue U.S. to be released if I’m innocent.?
(3) Where can I sue U.S. for torture?
(4) Where can my relatives sue the U.S. for my death?

Of course, the entire basis for opposing the rule of law; i.e. command responsibility; is that it would prevent future governments from breaking the law. And this is a bad thing why?
If more politicians were held to the same standards as the average citizen I would not be surprised that alot of the corruption, torture, and other crimes would be less rampant. Just maybe, if Bushco were prosecuted for torture it will be an incentive not to torture again.

I found this one to be particularly important. The laws of war are, in part, premised on the idea of accountability for crimes during war. We can’t lose sight of that.

I have a question about the paragraph you quoted from your Cato piece. You write that if armed conflict is an exceptional state of affairs that allows for relaxed constitutional protections, courts must in some circumstances determine that these state of affairs exist to protect against an overzealous Executive. I tend to agree with that sentiment, but do courts also have a role in protecting against an overzealous Congress? After all, courts are by design intended to protect the rights of individuals against encroachments by either the Executive or Congress.

What I have in mind is legislative proposals that seek to “affirm” an ongoing armed conflict against a broad range of international terrorist organizations. Well, if the actual, on-the-ground circumstances don’t reflect the intensity and duration of hostilities typically attributed to armed conflict scenarios, might courts have something to say in pushing back against overboard declarations of armed conflict?

8.17.2011
at 12:51 pm EST Raha Wala

Thanks for the kind words, Ben. You raise interesting and important questions, as usual.

Mihai – how long do you think I will be guest blogging? I will actually try to address at least one of your questions in the coming days.

Raha, thanks for your comment and question. This is a very tricky area of constitutional law. One could argue that determining the existence of foreign armed conflict is a matter constitutionally dedicated to the elected branches, particularly Congress. This is suggested by the Prize Cases, the Declare War Clause and cases such as Bas v. Tingy (1800) (looking only to acts of Congress to determine if France was an enemy at the time a certain vessel was captured).

On the other hand, Ex parte Milligan and at least two cases applying the Indian Depredation Act suggest that the existence of a state of war, particularly domestic conflict, is a factual matter to be determined by the courts in the application of domestic law. See e.g. Montoya v. United States, 280 U.S. 261, 267 (1901) (“We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to despatch [sic] a military force for their subjugation, is sufficient to constitute a state of war.”) Of course, the Milligan majority found that Congress may not constitutionally declare the existence of a domestic conflict or threat justifying the abrogation of constitutional rights unavailable at military commission unless the domestic courts are closed by conflict. The concurring opinion in Milligan suggests that Congress may do so, but perhaps only to support congressional indemnification of Hovey and his subordinates.

At the end of the day, there is a good argument that the judiciary may review a determination by one or both elected branches regarding the existence of armed conflict when they seek to abrogate or modify the constitutional rights of citizens. However, there is also a good argument, based on this and other precedent, that it may only do so in matters of domestic governance or in the absence of a clear determination by the elected branches. I have a great example on this point, but perhaps I should provide it in a later post.

8.17.2011
at 2:47 pm EST John Dehn

Thanks John. I think a later post that touches on this issue would be really interesting.

8.17.2011
at 3:10 pm EST Raha Wala

You could answer a question that is even more actual.
Bin Laden’s relatives are not convinced by the U.S. legal argument. They want to sue the U.S. for breaking international law. Do they have any forum where they could do that?

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